State’s top ethics panel moves toward more open, transparent procedures

(Photo/drinksmachine, Flickr)

(Photo/drinksmachine, Flickr)

Six weeks after an investigation by The Colorado Independent found repeated violations of the Colorado Open Meetings Law by the Independent Ethics Commission, the panel charged with enforcing ethical standards among public officials across the state has taken dramatic steps toward greater transparency and disclosure.

At the same time, a lawyer from the Colorado attorney general’s office continues to advise the commission to go into closed, executive sessions to talk about general legal questions despite the Open Meeting Law’s requirement those discussions take place in public whenever state officials meet.

Last month, The Colorado Independent reported the ethics commission spent 85 percent of its time meeting behind closed doors to discuss complaints and requests for rulings on the conduct of public officials and government employees. Included were sessions where a member of the panel reported deliberating on an ethics complaint — since dismissed — against Mike Coffman, the former Colorado secretary of state who won election to Congress last fall.

An attorney who specializes in First Amendment law said the panel didn’t appear to have “strictly complied” with Colorado’s stringent Open Meetings Law, which could render its numerous closed-door, executive sessions “illegal meetings” that were closed to the public.

Since The Colorado Independent published the results of its investigation, the state ethics commission has, for the first time:

• Posted a public notice listing specific lawsuits filed against the commission which commissioners plan to discuss with their attorneys behind closed doors.

• Discussed in public ethical questions under consideration by the panel.

• Recorded votes by commissioners to go into closed, executive session, as required by state law,

• Listed ethical complaints filed with the commission against public officials before convening in private to discuss whether the commission should pursue them,

• Added an agenda item for public comment for its regular meetings,

• Released to the public records the commission went to court to keep secret, including letters from lawmakers and government employees asking for guidance on ethical questions.

New ethics panel chairman sees the light

“We’re opening things up,” said Matt Smith, the ethics panel’s chairman since April and a former state representative from Grand Junction, as the initial public portion of the commission’s June 16 meeting concluded.

Smith had just announced the panel’s intentions to go into executive session to discuss several lawsuits against the ethics commission. For the first time, the public notice posted by the commission — read aloud by Smith — listed specific lawsuits commissioners planned to review, as well as enumerating complaints the panel planned to consider in private.

Colorado law requires public boards to announce “the topic for discussion in executive session, [including] identification of the particular matter to be discussed in as much detail as possible without compromising the purpose for which the executive session is authorized,” according to First Amendment attorney Steve Zansberg.

Among the court actions the panel discussed in private at its June 16 meeting was a lawsuit filed last month by The Colorado Independent by Zansberg’s law partner, Denver attorney Chris Beall, alleging the commission had failed to convene its executive sessions lawfully 16 separate times since January. The lawsuit asks a Denver District Court judge to order the commission to turn over recordings and notes from the closed meetings and seeks a court order “barring the Commission from continuing its pattern of illegal closed-door meetings.”

The state ethics commission was created by voters in 2006 with the approval of Amendment 41, sold as a measure to increase accountability and transparency in government.

As recently as last month, the five-member commission routinely met in secret to formulate policy and adopt positions on questions about ethical conduct by public officials, a practice forbidden by Colorado’s strict Open Meetings Law. The Colorado Independent’s investigation also found the panel didn’t specify topics planned for discussion, failed to record required votes to go into closed-door executive sessions, and in some cases didn’t even convene in public before meeting in private, as the law requires.

Colorado’s Open Meetings Law allows government officials to meet behind closed doors to discuss personnel questions, pending land deals and lawsuit strategies, among other matters, though it requires officials follow procedures strictly. The law places exacting restrictions on topics officials may discuss outside the public view.

Beall is representing The Colorado Independent, the Fort Collins Coloradoan and the Pueblo Chieftain in another lawsuit filed last month against the Colorado State University System Board of Governors for alleged repeated violations of Open Meetings Law during the board’s selection of a new system chancellor.

Since the ethics commission learned of The Colorado Independent’s lawsuit, and following a series of stories by TCI documenting legal questions surrounding the panel’s compliance with the Open Meetings Law, the commission has deliberated in public for the first time on ethical questions submitted by public officials. At its May 19 meeting commissioners finalized a ruling on an official’s inquiry about accepting a fellowship, and at its meeting June 16, commissioners hashed out the legality of government employees accepting prizes.

Previously, the commission went behind closed doors to formulate its position on ethical questions, only to emerge with complete rulings ready to be adopted in unanimous public votes. State courts have ruled that merely voting in public on matters decided in secret amounts to “rubber-stamping” and is no defense against charges a public body violated Open Meetings Law, Zansberg said.

State attorneys inconsistently interpret Sunshine law

Despite the ethics commission’s recent moves toward increased transparency, the panel continues to retreat behind closed doors to get advice from attorneys on topics state law requires be discussed in public.

On two occasions at its June 16 meeting — one involving questions whether a commissioner tried to influence a hiring decision and another over whether the commission could pay professional dues for its executive director — the attorney advising the ethics commission suggested she could give commissioners legal guidance in executive session.

That’s not permitted by Colorado’s Open Meetings Law, Beall said. Not yet, anyway.

“The statute requires that particular discussion has to happen in the open,” he said, pointing to a quirk in the decades-old law that allows local government bodies to get private advice from their attorneys but strictly limits the topics state boards and commissions can discuss with theirs.

State officials can only meet in secret for “[c]onferences with an attorney representing the state public body concerning disputes involving the public body that are the subject of pending or imminent court action,” according to the Open Meetings Law. In other words, it’s fine for state bodies — including the ethics commission — to talk with their attorneys about lawsuits in executive session but other topics are forbidden and must be discussed in public.

“Counsel for [the ethics commission] has been going into executive session to discuss legal questions with counsel,” admitted Mike Saccone, spokesman for the office of the attorney general, which provides lawyers to advise state commissions.

The state attorney advising the ethics commission at its June 16 meeting, First Assistant Attorney General Ilene Wolf-Moore, told The Colorado Independent the commission would be going into executive session to hear advice from her and another attorney on legal questions raised during the meeting. When a TCI reporter objected, citing the statute’s restriction of topics to “pending or imminent court action,” Wolf-Moore simply repeated her statement.

“All of our attorneys general had adhered to the core text of the Open Meetings Law,” Saccone said, while acknowledging that “some had interpreted the statute to discuss other legal matters with their boards.”

Noting that the law is about to change, Saccone described how attorneys in the attorney general’s office have been taking different approaches to the law.

“Prior to July 1, different attorneys had interpreted it in different ways while holding to its core provision,” Saccone said. “Some were interpreting it as applying to attorney-client privilege.”

AG Suthers lobbied to change the law

Beall scoffed at the notion some attorneys with the attorney general’s office were interpreting the law to allow closed-door discussions not permitted by the law. As proof the attorney general’s office has known full well what the law allows — and what it forbids — Beall described how the attorney general has spent much of this year working to get the law changed.

“Attorney General John Suthers acknowledged it was not permissible under the statute to have an executive session to discuss matters with an attorney beyond pending or imminent litigation,” Beall said.

“The attorney general of the state of Colorado knows what the law is now, and that is the reason why he pushed for an amendment to the law,” Beall said. “The fact some of his deputies might be stretching the law doesn’t change the fact the law doesn’t allow them to go into executive session to give legal advice on other matters. It’s real clear, the statute doesn’t authorize it.”

But that’s about to change.

“In two more weeks, it will be legal to do what they did,” Beall said.

On July 1, a revision to the Colorado Open Meetings Law goes into effect allowing state government bodies to get advice from attorneys the same way local government bodies — city councils, county commissions, school boards — have been able to do for years.

In addition, the law will no longer allow state panels to stop recording executive session proceedings when receiving advice from attorneys. Up until July 1, state panels have only been required to record closed-door sessions when discussing other matters. The requirement was put in place so that judges can examine what was said during executive sessions when challenges to the session’s legality arise.

For his part, Saccone said the attorney general’s office is already anticipating the revised law.

“We’re training our people ahead of time, getting together with various attorneys so we’re all on the same page and implementing the new statute the same way,” he said.

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Ernest Luning

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